Contract
Exhibit 10.5
3
This
Agreement is made as of the 10th day of June 2009 by and among Team Nation
Holdings Corporation, a Nevada corporation (hereinafter referred to as "TEMN”)
CalCounties Title Nation, a California corporation (hereinafter referred to as
"CALCOUNTIES"), and the holders of one hundred percent of the outstanding shares
of common stock of CALCOUNTIES (hereinafter referred to individually by name or
as the “CALCOUNTIES Shareholders” collectively).
This
Agreement provides for the exchange of all of the outstanding common stock of
CALCOUNTIES for such number of shares of common voting stock of TEMN as
determined by a Fairness Opinion described herein and other valuable
consideration, all for the purpose of and CALCOUNTIES being a wholly owned
subsidiary of TEMN and TEMN carrying on the business of CALCOUNTIES as set forth
herein.
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AGREEMENT
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Now,
therefore, on the stated premises and for and in consideration of the mutual
covenants and agreements hereinafter set forth and the mutual benefits to the
parties to be derived here from, it is hereby agreed as follows:
ARTICLE
1: REPRESENTATIONS AND WARRANTIES OF TEMN
As an
inducement to, and to obtain the reliance of CALCOUNTIES, TEMN represents and
warrants as follows:
1.1. Organization, Good Standing,
Power, Etc. TEMN (i) is a corporation duly organized, validly
existing and in good standing under the law of the State of
Nevada; (ii) is qualified or authorized to do business as a foreign
corporation and is in good standing in all jurisdictions in which qualification
or authorization may be required; and (iii) has all requisite corporate power
and authority, licenses and permits to own or lease and operate its properties
and carry on its business as presently being conducted and to execute, deliver
and perform this Agreement and consummate the transactions contemplated
hereby.
1.2. Capitalization. The
authorized capital stock of TEMN consists solely of 1,000,000,000 shares of
Common Stock, $0.001 par value, (the "TEMN Common Stock"), of which, on the date
hereof 47,066,944 shares are issued and outstanding and no shares are held
in the treasury of TEMN. At the Closing of this
Agreement:
1.3 Options, Warrants, Rights,
Etc. By closing, TEMN will not have outstanding any options,
warrants or other rights to purchase or convert any obligation into, any shares
of the TEMN Common Stock, nor any instruments or obligations to confer or create
such rights except the outstanding options held by the current directors of TEMN
which on or before Closing will have been amended in the form attached hereto as
Exhibit 1.3.
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1.4. Authorization of
Agreement. This Agreement has been or will be at Closing, duly
and validly authorized, executed and delivered by TEMN.
ARTICLE
2: REPRESENTATIONS AND WARRANTIES
OF
CALCOUNTIES AND CALCOUNTIES SHAREHOLDERS
As an
inducement to, and to obtain the reliance of TEMN, CALCOUNTIES represent and
warrant as follows:
2.1. Organization, Good Standing,
Power, Etc. CALCOUNTIES (i) is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California and (ii) has all requisite corporate power and authority, licenses,
permits and franchises to own or lease and operate its properties and carry on
its business as presently being conducted and to execute, deliver and perform
this Agreement and consummate the transactions contemplated hereby.
2.2. Capitalization.
As of the date hereof the authorized capital stock of CALCOUNTIES will consist
solely of Common Shares with a par value of $100.00 per share. By
Closing 2,880 shares of Common Stock will have been issued and outstanding and
no shares are held in the treasury of CALCOUNTIES. All of such issued
and outstanding shares of CALCOUNTIES Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable with no personal liability
attaching to the ownership thereof.
2.3. Authorization of
Agreement. This Agreement has been or will be at
Closing duly and validly authorized, executed and delivered by
CALCOUNTIES.
2.4 Ownership and Authority to
Transfer. Each of the
CALCOUNTIES Shares are the sole legal and beneficial owners of their shares and
represent and warrant there are liens or third party interest in their
CALCOUNTIES shares and the sale and transfer as set forth in this Agreement and
Plan of Reorganization will not result in a default or breach of any contract of
the CALCOUNTIES Shareholder.
2.5 Investment Representation by
CALCOUNTIES
Shareholders. The CALCOUNTIES shareholders are
acquiring shares of TEMN Common Stock issuable hereunder for their own account
and agree not to distribute any shares issuable there under within the meaning
of the Securities Act of 1933 (the 1933 Act), except as otherwise provided
herein, unless an appropriate registration statement has been filed with the SEC
or unless an exemption from registration under the 1933 Act is available
according to opinion of counsel for TEMN. Each certificate for shares
issued shall be stamped or otherwise imprinted with the following or a
substantially similar legend:
"The
shares represented by this certificate have not been registered under the
Securities Act of 1933 (the "Act") nor any state securities
laws. These shares may not be offered for sale, sold or otherwise
transferred except pursuant to an effective registration statement under the Act
or pursuant to an opinion of counsel acceptable to TEMN that an exemption from
such registration is available."
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2.6 Accredited
Investors/Investment Sophistication of CALCOUNTIES Shareholders. The
CALCOUNTIES shareholders represent that they are Accredited Investors as defined
by Regulation D and have sufficient investment sophistication and ability to
take the financial risks associated with this transaction.
ARTICLE
3: PLAN OF EXCHANGE AND CLOSING
3.1.
The
Exchange. The issued and outstanding shares of common stock of
CALCOUNTIES shall be exchanged as follows for the consideration set forth
herein:
A). At
Closing, the CALCOUNTIES Shareholders shall deliver to TEMN, certificates
representing all of the outstanding common stock of CALCOUNTIES properly
endorsed for transfer thereto.
B).
At
Closing, TEMN shall deliver to the CALCOUNTIES Shareholders, in proportion to
their percentage ownership of CALCOUNTIES, such number of shares of
TEMN common stock as determined by the Fairness Opinion set forth in Section 4.1
below.
3.2. Closing. The
Closing of the transactions contemplated by this Agreement shall take place on
such date as may be agreed upon by the parties, but no later than sixty days
from the date of approval of this Agreement and Plan of Reorganization by the
California Division of Insurance (herein called the "Closing Date"), at the
offices of CALCOUNTIES, or such other time and location as the parties may
mutually agree.
3.3. Closing
Events. At the Closing, each of the respective parties hereto
shall execute, acknowledge, and deliver (or shall cause to be executed,
acknowledged, and delivered) any agreements, resolutions, or other instruments
required by this Agreement to be so delivered at or prior to the Closing,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence the
transactions contemplated hereby.
ARTICLE
4: SPECIAL COVENANTS
4.1 Fairness
Opinon. Prior to Closing, TEMN shall engage
a qualified third party for the purposes of determining the reasonable fair
value of CALCOUNTIES and equivalent number of shares of the common
stock of TEMN to be issued to the CALCOUNTIES SHAREHOLDERS under all relevant
circumstances.
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4.2 Conduct of
Business. Prior to Closing, TEMN and CALCOUNTIES shall each
conduct their business in the normal course, and shall not sell, pledge, or
assign any assets, without the prior written approval of the other party, except
in the regular course of business. Neither TEMN and CALCOUNTIES shall
amend their Articles of Incorporation or Bylaws, declare dividends, redeem or
sell stock or other securities, incur additional or newly-funded liabilities,
acquire or dispose of fixed assets, change employment terms, enter into any
material or long-term contract, guarantee obligations of any third party, settle
or discharge any balance sheet receivable for less than its stated amount, pay
more on any liability than its stated amount, or enter into any other
transaction other than in the regular course of business and with notice to the
other party.
4.3 Covenant against Transfer or
Pledge. Prior to Closing, the CALCOUNTIES
Shareholders shall not sell, transfer, pledge, hypothecate or create an interest
in their CALCOUNTIES common stock except pursuant to laws of inheritance or
probate.
ARTICLE
5: CONDITIONS PRECEDENT TO
OBLIGATIONS
OF PARTIES
5.1. CALCOUNTIES and CALCOUNTIES SHAREHOLDERS’ Closing
Conditions. The obligations of CALCOUNTIES and CALCOUNTIES’S
SHAREHOLDERS hereunder are subject to fulfillment prior to or at the Closing of
each of the following conditions:
A. Approval of the California Division of
Insurance. The California Division of Insurance
shall have approved this Agreement and Plan of Reorganization.
B. Acquisition of First
Southwestern Title Company of California.
TEMN or an affiliate thereof shall have closed an agreement for the acquisition
of First Southwestern Title Company of California with the approval of the
Department of Insurance of the State of California.
C. Acquisition of a Title
Insurance
Underwriter. TEMN or an affiliate thereof shall have
closed an agreement for the acquisition of a California title insurance
underwriter with the approval of the Department of Insurance of the State of
California.
D. Listing
Qualifications. TEMN shall have met or exceeded
the qualifications for the listing of its common stock on the NASDAQ or American
Stock Exchange markets.
E. Representations and
Warranties. The representations and warranties of TEMN made
pursuant to Article 1 above shall be true and accurate in all material respects
as of the Closing Date.
5.2. TEMN' Closing
Conditions. The obligations of TEMN hereunder are subject to
fulfillment prior to or at the Closing of each of the following
conditions:
A. Representations and
Warranties. The representations and warranties of
CALCOUNTIES and the CALCOUNTIES SHAREHOLDERS made pursuant to Article 2
above, shall be true and accurate in all material respects as of the Closing
Date.
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ARTICLE
6: MISCELLANEOUS
6.1. Expenses and Further
Assurances. The parties hereto shall each bear their
respective costs and expenses incurred in connection with the transactions
contemplated by this Agreement. Each party hereto will use its best
efforts provide any and all additional information, execute and deliver any and
all documents or other written material and perform any and all acts necessary
to carryout the intent of this Agreement.
6.2. Survival of Representations,
Warranties and Covenants. All of the representations, warranties and
covenants made as of the date of this Agreement and as of Closing, shall survive
the closing of this transaction.
6.3. Successors and
Assigns. All representations, warranties, covenants and
agreements in this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, representatives,
successors and assigns whether so expressed or not.
6.4. Governing
Law. This Agreement is to be governed by and interpreted under
the laws of the State of California, without giving effect to the principles of
conflicts of laws thereof. In addition, the parties agree to venue
and jurisdiction in the State or Federal Courts of the State of California in
and for the City of Irvine.
6.5. Section and Other
Headings. The section and other headings herein contained are
for convenience only and shall not be construed as part of this
Agreement.
6.6. Counterparts. This
Agreement may be executed in any number of counterparts and each counterpart
shall constitute an original instrument, but all such separate counterparts
shall constitute but one and the same instrument.
6.7. Entire
Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, understandings
and arrangements, oral or written, between the parties hereto with respect to
the subject matter hereof. This Agreement may not be amended or
modified, except by a written agreement signed by all parties
hereto.
6.8. Severability. Any
term or provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffectual to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity
or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction.
6.9. Confidentiality. Each
party hereto agrees with the other parties that, unless and until this Agreement
has been consummated, or for a period of one (1) year from the date of this
Agreement if the transaction contemplated by this Agreement is not consummated
it and its representatives will hold in strict confidence all data and
information obtained with respect to the other party from any representative,
Officer, Director or employee, or from any books or records or from personal
inspection, of such other party, and shall not use such data or information or
disclose the same to others, except: (i) to the extent such data or information
has theretofore been publicly disclosed, is a matter of public knowledge or is
required by law to be publicly disclosed; and (ii) to the extent that such data
or information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement. The foregoing notwithstanding, TEMN
shall be authorized to publicly announce the execution and closing of this
Agreement, details thereof and a description of CALCOUNTIES and the business
conducted thereby.
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IN
WITNESS WHEREOF, the corporate parties hereto have caused this Agreement to be
executed by their respective Officers, hereunto duly authorized, as of the date
first above written.
TEAM
NATION HOLDINGS CORPORATION
By: /s/ Xxxxxx X. Xxxxx ATTEST:
/s/ Xxxxx Xxxxxxxx
Xxxxxx X.
Xxxxx,
Xxxxx Xxxxxxxx, Secretary
Chief
Executive Officer
CALCOUNTIES
TITLE NATION
By: /s/ Xxxxxx X. Xxxxx ATTEST:
/s/ Xxxxx Xxxxxxxx
Xxxxxx X.
Xxxxx
Xxxxx
Xxxxxxxx, Secretary
CALCOUNTIES
SHAREHOLDERS
/s/ Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxx
Xxxxxx X.
Xxxxx
Xxxxxx
X. Xxxxx
/s/
Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
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